Viktor Bérces: Evidence in Criminal Proceedings
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Chapter III. Basic concepts of evidence
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3.1. Levels of interpretation of the concept of proof
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3.1.3. The subject of evidence: the relevant facts

3.1.3. The subject of evidence: the relevant facts

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The subject of evidence is made up of the facts of the case and relevant to the application of the law (collectively: relevant facts), the selection of which is the task of the competent authorities (courts), and the precision of this mechanism is a fundamental determinant of the quality of the administration of justice. The procedural law in question naturally sets out the general framework which must be examined in all cases, for example, with regard to the mandatory content of an indictment or a court decision.

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In the light of the legislation and judicial practice, the set of generally relevant facts can be divided into two groups: (1) the identity and particulars of the accused (documentary evidence); (2) the facts constituting the act charged. 1

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In this context, it is first of all necessary to define the general characteristics of the term “fact”. On this basis, a fact is a unique (one-off) and objective phenomenon of the material world, which is described and defined in terms of space, time and causal relations. The general characteristics of a fact are therefore the following:

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  • objective: it exists regardless of whether human consciousness (cognition) is aware of it;
  • material in nature: the unity of interpenetrating material structures (therefore the same fact can be approached in several dimensions, and thus described from several perspectives);
  • flexible: its boundaries can be arbitrarily defined in time, space or the extent of its causal links.2
 

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According to Háger, “the object of proof is the fact itself, the one-off, essentially unrepeatable, perceptible event or phenomenon. The facts on which the proof is based are artificially extracted from the natural-social processes, from the sequences of human behaviour.” 3

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The fact can be understood as an event, which is the totality of interactions between man and the objects of his (social) environment, in an arbitrarily circumscribed layer of the material world. This process is carried out according to the natural laws of the material world, in particular the laws of universal causality. On this basis, the ‘past’ can be theoretically reconstructed at any given moment in time, given the knowledge of causality, and possible developments can be predicted, to a certain extent. 4

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Data is knowledge of a fact5 which “changes hands” during the procedure, and in this process is necessarily subject to selection by the authorities involved. There are several possible forms of data transfer, such as informal communication or formal requests. It is through knowledge of the data that it is possible to reconstruct the facts relevant to the assessment of the legal issue. However, the purpose of this process varies according to the stage of the procedure: in the investigative stage, all the facts that can be used to “advance” the evidence (to establish different verifiable versions) are considered relevant, whereas in the judicial stage the scope is “narrowed” and only the facts contained in the accusation are proved or “counter-proved”.

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There is a relative consensus among legislators, practitioners and legal scholars on the subject of evidence, which can be defined in terms of the facts relevant to the application of the criminal codes and procedural rules.6 These legally relevant facts can be grouped in various ways:

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  1. Primary – secondary facts: the former allow cases to be judged with sufficient certainty and precision, while the latter only logically “connect” the events in the historical facts and those considered relevant by the court (space or time).7
  2. Objective (in rem) – subjective (in personam) facts: the former refer to the material aspect of the offence (e.g. the conduct, the object of the offence), the latter refer to the offender’s psychological relationship to the offence, the degree of culpability, the type of culpability (intentional, negligent).8
  3. Facts of substantive law – procedural law: the former are facts to be proved for the purposes of the Criminal Code, the latter for the purposes of the rules of the Code of Criminal Procedure. It should be noted that, according to the principles established by judicial practice, the subject of proof may also be a procedural offence: for example, the Supreme Court (judgment No. Bf. III. 543/1996/7) has pointed out that, in the case of a forced conviction, the proceedings cannot be suspended until the end of the criminal proceedings, but that the court hearing the main case must decide on this.9
  4. Facts to be proved – facts in the public domain: the former require the taking of evidence by the competent authority (court), but the latter do not, so the court does not need to justify its decision not to take evidence.
 

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I would like to note that the subject matter of the evidence cannot, in my opinion, be considered the same at the investigative, prosecutorial or judicial stage. Gödöny draws attention to a different view, namely that an investigation only really fulfils its true function if the subject-matter of the evidence is already defined at this procedural stage in such a way that there is no need to supplement the evidence in the court proceedings.10 The author thus draws attention to the ‘identity in principle’ of the subject-matter of evidence in relation to the procedural stages. For my part, however, I believe that

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  • the scope of the evidence can only be defined in general terms at the investigation stage, as investigating authorities will necessarily examine several versions of the offence;11
  • at the investigative stage, it is not primarily the evidence but the evaluation (e.g. the usability) of the means of proof that is the subject of the evidence;
  • during the investigation, the investigating authority must not only prove the facts that are relevant at the time, but must also examine all the information that could potentially become evidence in the case;
  • the subject matter of the evidence will necessarily change over time because of possible changes in the facts to be proved.
 

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The starting point for the taking of evidence is, first of all, the determination by the competent authority (investigating authority or prosecutor’s office) of the facts that need to be proved in order to decide the case. This set of facts is a set of a defined number of (relevant) facts. Within this set, some authors emphasise only the importance of the facts to be proved, but there is also a view in the literature that the evidentiary facts are also subject to proof.12 According to Gödöny, it is undeniable that evidentiary facts must also be proved in some form, and therefore become ‘temporarily’ matters to be proved, since without them they would not be capable of establishing the facts which are the subject of the evidence. On the other hand, they do not become ‘long-term’ matters to be proved.13

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From a theoretical point of view, the scope of evidence is limited by the following factors:

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  • the rules of criminal law (e.g. as regards the facts relating to the assessment of the facts of a particular offence)
  • the rules of criminal procedural law (e.g. as regards the facts on which the authority’s powers and jurisdiction are based)
  • the specific facts of the case.14
 

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I should note that the case will of course also involve the establishment, wittingly or unwittingly, of a number of facts that have no relevance whatsoever. However, this is not an error on the part of the authorities, but a necessary corollary of the investigation.

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From a practical point of view, the object of proof has both objective and subjective elements.15 Of these, the examination of the objective elements usually precedes the examination of the elements of the subjective side. On the other hand, evidence may become known after the subjective elements have been examined (e.g. as to the intention of the perpetrator) which may lead to the conclusion that another offence has been committed (e.g. assault causing death instead of manslaughter), and thus may also affect the assessment of the material elements.

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  1. Object elements:
    • the act: the main questions to be examined here are whether the act has been committed and whether it is contrary to a specific part of the law;
    • the place of the offence: this may be relevant, inter alia, for the jurisdiction of the competent authority or the classification of the offence;16
    • the time of the offence: this may be relevant to the statute of limitations, the age of the offender, the degree of completion of the offence, the weather conditions at the time of the offence or the classification of the offence17, among other things;
    • the way the offence was committed: among other things, the classification of the offence,18 and the extent to which the offender may have known the place where the offence was committed, and his or her previous relationship with the victim;
    • the means of commission: may be relevant, inter alia, to the classification of the offence,19 or the circumstances in which the sentence was imposed;20
    • the stage at which the offence is committed: this is relevant for the legal consequences applied; in particular, in the case of preparation, it is important to ask whether (1) the offender can be punished for the offence in the first place, and (2) the preparation itself has constituted the legal element of another offence;
    • the result: in this context, proving the result of endangerment seems to be more difficult, especially if the Criminal Code already criminalises the creation of a “remote dangerous situation”;21 in the case of the result of injury, the most common object of proof is the material damage and the medical condition of the bodily injury, and in this respect, in my opinion, the investigating authority is already legally obliged to obtain an expert opinion; in the case of material damage, the nature and exact amount of the damage must be clarified;22
    • the causal link: this circumstance refers to the causal link between the conduct and the result, which may be “broken”;23 the full “mapping” of this is usually left to the judicial branch;
    • other circumstances that made the offence possible.
  2. Subject elements:
    • the identity of the perpetrator: in this context, it is necessary to check the identity of the perpetrator and the conditions for becoming a subject;24 it may also be relevant whether (1) the perpetrator is an official, a soldier or a person enjoying immunity; (2) there is criminal liability of more than one person (e.g. joint criminality, criminal association, criminal organisation);
    • the guilt of the offender: in this context, the investigating authority usually refers only in general terms to the intentional or reckless nature of the offence, with more detailed terminology (e.g. probable intent) being used in the charging documents or in the court’s decision;
    • motive and purpose: the assessment of these circumstances is usually also the first to be found in the prosecution documents or the case file of the court proceedings;
    • the degree of criminal responsibility: in this respect, mitigating and aggravating circumstances must be taken into account;
    • the personality of the offender: in this area, the offender’s danger to society must be assessed;25 the outcome of this assessment can have a major impact on the choice of the sanction applied (e.g. in the case of juveniles, it may be based on the use of a correctional education instead of a reprimand); the assessment criteria may include the offender’s character, conduct in life, social involvement, employment or social circumstances.26
 

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The above grouping can be a point of orientation for all public authorities (courts) when taking evidence. However, I believe that the examination of these elements is not proportionate to the procedural stages. Investigating the substantive elements is primarily a matter for the investigating authorities, while the subject-matter elements are usually dealt with by the prosecution services and the courts. Nevertheless, the process of proving the substantive elements should, in principle, begin at the investigative stage and then be ‘refined’ at the prosecutorial stage or ‘stalled’ by a procedural decision of the prosecution (e.g. referral to mediation). If there is a court hearing, these elements will be examined again, but at this stage there will be a much more detailed in-depth examination of the substantive law rules, drawing on judicial practice.
1 In its judgment Bf.III.359/2000/9, the Supreme Court stated that evidence may only be admitted in respect of those facts which are (1) necessary for the legal assessment of the act charged and for the establishment of these relevant facts, and (2) the grounds of the judgment must also contain only such facts. In: Tamás Háger: Gondolatok a bizonyításról. [Reflections on evidence.] https://debreceniitelotabla.birosag.hu/sites/default/files/field_attachment/gondolatok_a_bizonyitasrol_ht_0.pdf
2 Bócz–Lakatos (2008) ibid. 31.
3 Háger ibid.
4 Bócz–Lakatos (2008) ibid. 31.
5 Bócz–Lakatos (2008) ibid. 31.
6 In no legal system, however, do these include facts which are common knowledge or of which the authority (court) is officially aware.
7 Supreme Court Bf. III. 359/2000/9.
8 According to Tremmel, “in the dichotomy of questions of fact, it must always be borne in mind that in rem knowledge is primary and in personam knowledge is secondary.” Tremmel (2006) ibid. 32.
9 "During the court proceedings, witnesses stated that their incriminating statements were made under duress – abuse – during the investigation. The court of first instance suspended the proceedings for the crime of assault causing danger to life until the crime of coercion was considered, thus the criminal proceedings in the main case were delayed for seven years.” György Lőrinczy: Gondolatok a bizonyítási eljárás törvényességéről. [Reflections on the legality of the evidentiary procedure in criminal proceedings.] http://acta.bibl.u-szeged.hu/6958/1/juridpol_053_209-234.pdf, 215.
10 Gödöny (1968) ibid. 68.
11 E.g. burglary may also cover embezzlement by shop employees; a person who loses his money may report a robbery, etc. In Gödöny (1968) ibid. 71.
12 E.g. Zhogin–Fatkullin In: Gödöny (1968) ibid. 110.
13 Gödöny (1968) ibid. 110.
14 64–66.
15 Gödöny (1968) ibid. 85–87.
16 E.g. drug trafficking committed on the premises of a building used for educational purposes. [CC § 177 (1) (c)]
17 E.g. night-time offence in case of trespass. [Criminal Code § 221 (2) (a)]
18 E.g. special cruelty in case of homicide. [CC § 160 (2) (d)]
19 E.g. misdemeanour of theft committed using a false or stolen key. [CC § 370 (2) (bg)]
20 For example, in the case of an attempt with an inappropriate instrument.
21 For example, in the case of a crime against road safety.
22 Gödöny (1968) ibid. 85–87.
23 E.g. a doctor’s failure to act causes a traffic accident victim to become permanently disabled.
24 See attainment of the age of criminal responsibility and minimum limited capacity to sue.
25 In this respect, conclusions can be drawn, for example, from the unscrupulousness of the offence, the offender’s criminal record, etc.
26 I would note that the general characteristics of the accused can only be taken into account as circumstantial evidence in themselves. Thus, for example, in the case of the accused, who is a printer, the court may rather assume that he was not involved as an instigator but as a co-perpetrator of the crime of forgery of public documents. However, this qualification as a printer is clearly not in itself a sufficient condition to be considered a co-conspirator.
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